Civil Procedure Outline

Civil Procedure Outline

I. An Introduction to Civil ProcedureA. Background of Civil Procedure

Sources guiding civil procedure: Constitution

Codes and Rules (Fed. Rules of Civil Procedure at federal level)B. Elements and History of Due Process 5th Amendment: No person should be denied life, liberty, or property without due process of law

Applies to federal government 14th Amendment: Due process clause that applies to states Fundamentals of due process:

Notice

An opportunity to be heard on issue to present your side of the storyGoldberg v. Kelly U.S. Supreme Court (1970)

Welfare recipients form a class action lawsuit claiming violation of due process on grounds that NYC officials terminated or were about to terminate their welfare benefits without a fair hearing prior to termination

Are welfare benefits property rights?

In Goldberg, defendants conceded the point and said that for purpose of case, due process applies

Today, Supreme Court does not hold that Welfare benefits are Constitutional property rights

Goldberg outlines basic law with regard to what process is due:

Balance of interests of individuals and interests of government

If benefits are terminated wrongly, recipients will lose a lot and wont have means to survive; state has interest in protecting dignity of people ( provides benefits vs. States financial benefits for not giving more process (judicial economy)

Court found that the loss plaintiffs will suffer is greater than the loss of fiscal resources the govt. will suffer by paying benefits to people who may not deserve them. Why is evidentiary hearing so important? Provides a chance to present oral argument because people may not be able to craft a meaningful written statement (Due process requires providing a translator if hearing is to be meaningful)

Chance for cross-examination of witnesses, councel if recipients so desire (but must provide council themselves)

Dissent

People in need of aid will not be helped because government will not put people on aid until they have made an exhaustive attempt to determine eligibility

Not concerned with balancing issue

Where Court stands on due process today: Post 9-11 statute allows government to detain enemy combatants

Amount of process due before being held decided by weight of private interest of liberty against governments asserted interest, which includes burden on government in providing more process

II. Remedies and Stakes

Before decision is made to use civil process, it must be decided what remedies/relief can be attained through system

A. Provisional relief

Equitable remedies: Can be attained before any decision is made on claim (no juries for equitable claims)

Invoked for two reasons:

To secure a judgment (make sure plaintiff gets compensation awarded and could put pressure on someone to settle)

To stop someone from continuing activity or to preserve the status quo

Rule 65 (Objective of maintaining status quo) Preliminary Injunction

Notice to other side and hearing applies unless there is immediate irreparable harm

In ruling on preliminary injunction, court will consider:

If injunction will harm other side

If its in best public interest

How likely P is to succeed on claims

Irreparable harm suffered by P if there isnt a preliminary injunction Temporary Restraining Order Filed at same time that preliminary injunction is filed Has a lifespan of no more than 10 days unless it is extended

Notice and hearing applies unless P shows immediate and irreparable injury that will occur if wait for hearing

P needs to make at least an informal attempt to notice D Rule 64: Seizure of Person or Property (Securing Judgment) If there is a suit with a possible settlement but P is worried that property will be gone by time she settles/wins suit, she can get: Attachment: real property is seized

Writ of attachment: written order on land that says that if someone buys land, it is not unburdened

Sequestration: Public official takes property to neutral location

Garnishment: 3rd party has to turn over Ds property in his possession (often wages) Fuentes v. Shevins (U.S. 1972): Due Process and Seizure of Property P filed suit claiming deprivation of due process under 14th Amendment after her goods (gas stove, stereo) were repossessed by sheriff when store obtained writ of replevin, saying P hadnt made final payments. Goods were repossessed before P received summons to answer stores complaint. Judgment based on private interest to P and interest of store Issue: Does P have right to be heard before Statue authorizes its agents to seize property in possession of another upon request for replevin?

P had possessor interest in propertyhad paid substantial amount for it

Notice and hearing requirements of due process apply even if seizure is temporary (short deprivation still a deprivation) and even if property taken is not necessary for living (stereo, stove)

When property taken under replevin, there is a high risk of error because writ of replevin is issued on word of one party so post-seizure hearing is not good enough (except in emergency such as bank failure, wartime)

*Provisional relief in Carpenter case:

A TRO and preliminary injunction so Randall Dee cant sell house

Preliminary injunction ordering Jeep not to be altered

A sequestration of Jeep to put it under supervision of third party *Provisional relief in Cleveland case

preliminary injunction to stop hiring process

B. Final Relief Granted after decision is made on claim

These can be either equitable or legal remedies (there are juries to determine legal remedies)

Equitable final relief

Granted when money damages wont be enough to compensate for losses

Permanent injunction

Declarative relief: parties have declaration of their rights

Legal Relief

Monetary damages

Punitive

Compensatory

Nominal: (unusual) when someones rights have been violated but they have not suffered any right that can have monetary value attached to it

*Final Relief in Carpenter case: Compensatory damages

lost income, lost household services, etc.

Punitive damages

Must show recklessness, willful or wanton misconduct

Judgment proof defendant:

D doesnt have any money or assets so P cant get damages from him *Final relief in Cleveland case:

Final equitable relief

If final goal is a permanent injunction to restructure hiring process, Ps must show that there is no adequate legal remedy (money damages not enough for the Ds)

Compensatory back pay

C. Contempt: When a party or lawyer disobeys a court order A party or lawyer can be held in contempt if he violates a court order or rule

Parties sometime deliberately disobey a statue in order to protest/challenge a rule they deem to be unjust Collateral Bar Rule (Enforced in Walker v. Birmingham) Procedural rule requiring obedience to a court order even if it is later found to be unconstitutional

You cannot disobey a court order and then raise unconstitutionality of the order as a defense. Instead, you must try to directly challenge order first

Rule does not apply if court that issues injunction does not have jurisdiction over the parties or if injunction is so obviously invalid on its face In enforcing collateral bar rule, was Supreme Court collaborating with injustice in Walker v. Birmingham?

When is the collateral bar rule applied?

How can someone challenge injunction without running into collateral bar rule?

III. Pleadings and Simple JoinderA. Claims, Causes of Action, Elements, and Burdens of Proof Plaintiffs have three obligations to win civil litigation:

Must meet burden of pleading: In fed. court, they must state a claim for which relief can be granted (Cause of action)

Must meet burden or production (sufficient evidence to permit a reasonable person to find that each element of claim is true)

Must meet a burden of persuasion by persuading fact finder that each element is true by a preponderance of the evidence.

If P does not meet burden of persuasion, D can do nothing and still win

When P has proved prima facie case, burden of proof shifts to D, who must show why P isnt correct

B. Pleadings Timing Rule 12(a) deals with timing issues of complaints Rule 8(a)

States what has to be in the complaint

Short and plain statement showing that the P is entitled to relief

Short and plain statement on the grounds upon which the courts jurisdiction depends Demand for judgment for the relief which the pleader seeks

Form 9 as an example (does not provide elements of claim, date and time of accident so D knows what complaint is referring to) Policy behind form of pleadings:

If too much specificity required, some meritorious claims will not be brought or will be terminated for failure to meet standard If too little is required, suits without merit will be allowed to be brought

Rule 8(e)2 P may plead two or more claims, regardless of consistency

Rule 9(b)

Special matters must be pleaded with particularity if they are to be raised at trial:

Circumstances giving rise to any allegations of fraud or mistake, etc. (others listed)

Rule 9(g) When items of special damage are claimed, they should be stated

Items of general damage (suffering, lost income, hospital bills, etc.) need not be stated with specific dollar amount

Rule 11

Requires a reasonable investigation of the facts before allegations

Rule 12(b)6 Motion Failure to state a claim upon which relief can be granted

P must state only the facts, not the legal theory she is relying on, but if D cannot respond because of an absence of a legal theory, then the court can grant with leave to amend

When reviewing complaint, courts accept Ps statement as true, read allegations in light most favorable to P and then decide if P has stated a claim upon which P can gain relief

Courts also decide if there is sufficient notice to D so that D can reasonably begin discovery

Often when Ps case is dismissed for failing to state a claim, court will give P another opportunity to file an amended complaint

Conley v. Gibson (U.S. 1957)

Complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Example of how liberal the rules of pleading are under rule 8(a) Details are not necessary (short and plain statement that will give D fair notice of what Ps claim is and the grounds on which it rests

Fair notice: Enough factual specificity so that D can begin discovery in a way that will help develop facts

Four reasons for granting 12(b)6 motion: Complaint is so sparse that it doesnt allege cause of action so that D would have to guess what sort of claim it was. (If cause of action could be reasonably inferred, P would probably survive motion)

Even if everything that P says is true, no legally cognizable claim exists Cause of action exists, but complaint does not state even rudimentary information to suggest that P may have cause of action (he was negligent to me)

Some inferences are ok, but too many is problematic

Complaint is detailed but the facts alleged do not correspond to or contradict cause of action

Strategic considerations: Detailed complaint could show that P cannot prove elements of case

Courts do, however, allow for inconsistencies in pleadings because of the possibility that a factfinder could be convinced of one theory but not another

Policy: Courts deal with cases on merits and do not get rid of cases based on mistakes in pleadings (if complaint says breach of contract rather than negligence, this should not be fatal to case as long as nature of claim provides enough info to D to show basis of claim) C. Other Preliminary Motions

Rule 12(e): Motion for a more definite statement Applicable if complaint is so vague or ambiguous that D cannot reasonably be required to form response Must include description of defects of complaint and details required

Cannot be brought after answering

Courts have tried to prevent 12(e) motions from being used as a substitute of discovery

12(f): Motion to Strike Asks court to delete from pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter

can use 12(f) when P has listed several causes of action and one of them fails to state a claim upon which relief can be granted on ground that it is immaterial (though normally 12(b)6 is used).

12(b) defenses to validity of complaint/motions to dismiss: 12(b)1: lack of jurisdiction over the subject matter

12(b)2: lack of jurisdiction over the person

12(b)3: improper venue

12(b)4: insufficiency of process

12(b)5: insufficiency of service of process

12(b)6: failure to state a claim upon which relief may be granted

12(b)7: failure to join a necessary party under rule 19

P might do this if indispensable party would ruin jurisdiction

These motions may be made either in the answer or by separate motion

These motions also relevant to counterclaims, codefendant, cross claim, etc.

Losing ones privilege to bring 12(b) motionsConsolidation of Defenses: 12(g): party must consolidate motions (if they are available at that time) except for situations in 12(h)(2) If 12(b) filed prior to answer, need to consolidate defenses, including any plausible less-favored defenses in motion at the same time or else risk losing defense

If answer without bringing 12b motions, include all plausible defenses in answer 12(h)1: privileges lost if not included with other 12(b) motions or in responsive pleading or amendment: personal jurisdiction

improper venue

insufficiency of process

insufficiency of service of process

Example: Cannot file claim for lack of jurisdiction and, if its not granted, file a motion to dismiss for improper venuethat was waived when it wasnt included with first motion)

12(h)2: Favored defenses not waived under 12(h)1:

failure to state a claim upon which relief can be granted

failure to join indispensable party

objection of failure to state a legal defense to a claim

These favored defenses can even be brought up at trial

Policy: If, for instance, 12(b)6 was not brought but it is clear that it would have been granted, the right is not waived, or else the next trial procedures would be useless (efficiency, not spending money unnecessarily, etc.)

D sometimes refrains from including favored defenses to avoid pointing out weakness in case, hoping to raise 12(b)6 at directed verdict stage when it would be too late for P to cure omission

12(h)3: Special category for subject matter jurisdiction

Never waived and the court will dismiss whenever it is realized 12(d): Defenses should be heard before trial unless court says otherwise

12(c): Rarely used, but could in such a situation:

Statute of limitations raised as a defense and they are up, but D admits allegations and raises a nonapplicable defense( P winsD. Answers Filed after motion to dismiss is denied, within 20 days from when party is served, unless time is modified or if party responds to a complaint with a motion

Answers include:

Admissions and denials to allegations of Ps complaint

8b: requires admission or denial of each allegation, except when a party is without knowledge or information sufficient to form a belief as to the truth of an averment.

Some courts have restricted the use of this language, preventing parties from using it as an excuse to avoid making a reasonable inquiry prior to making an admission or denial

Party can deny specific averments, paragraphs, or entire complaint

8(d): When responsive pleading is required, averments not denied are considered admitted (one exception is to amount of damages)

When responsive pleading is not required, allegations not denied are taken as denied or avoided

Purpose of answer: to narrow the issues to see what is still in dispute

Admissions: once admitted, it is taken to be true for the rest of the case (jury must find admissions as true) unless request to amend admission is granted

strategy of P to ask very specific facts to make it harder for D to state an unconditional denial

Denials: There are penalties for denying all of allegation (blanketed denial) when party could admit portion of it

Court may allow denial to something that is true if D objects to how it is worded

Absent actual knowledge, information and belief can be sufficient to deny or admit: Based on information and belief, I deny

A party must exert reasonable effort to obtain knowledge of a fact, if not, answer may be deemed admission (Greenbaumpostal worker slip and fall case)

Affirmative defenses: 8(c)

Must be pleaded by D under pleading rules

D is essential saying Even if you prove your cause of action, I win because of another rule or exception. (Statue of limitations, contributory negligence, etc)

D has burden of pleading, production, and persuasion as to the elements of an affirmative defense There are some cases where some burden placed on D even if its not an affirmative defense: burden of production: D has to prove it wasnt negligent in case of coat at drycleaner

burden of pleading: P has burden of pleading, but D must prove non existence of an element as an affirmative defense

Rule 8(c) lists nineteen affirmative defenses

Some courts have ruled that affirmative defenses not waived by failing to raise them in an answer, but it is better to include all potential defenses in an answer

12(b) defenses

Counterclaims and cross-claims and Rule 14 Impleader After the answer: 12(c) judgment on the pleadings Accomplishes the same objective as 12(b)6, just after the answer in cases where, for example, affirmative defense is shown, such as statute of limitations E. Amendments: Rule 15 Rule 15(a): Plaintiff can amend its complaint without leave of court so long as it occurs before answer is served (if 12(b) motion made does not matter) If no responsive pleading is permitted then P can amend complaint once within 20 days after it is served

Answer: Can be amended once within 20 days after D has served it

If answer contains counterclaim, answer may be amended until P has served reply

Amending by leave of court

Amendment allowed freely given when justice so requires. Limits: No unreasonable delay No prejudice to other party

If there is delay with no harm/prejudice, then this cannot be used as an argument

New issue not raised in bad faith

New issue not futile Rule 15(c): Relation Back: 15(c)1: Allowed when statute of limitations havent expired 15(c)2: Relation back allowed if claim or defense asserted in pleading arose out of the conduct, transaction, or occurrence set forth in original pleading. Factors to consider:

Is there a logical connection between original and amended complaint (did one thing lead to another)?

Would there be overlapping evidence, witnesses?

Once these questions answered, look at policy behind statute of limitations (protecting Ds that would be prejudiced from having to defend years later, sense of repose)would case be dismissed on mere technicality or because of prejudice to D? 15(c)3: Relation back of parties if amendment changes parties

15(c)2 and must be satisfied Party must have received sufficient notice within 120 days of filing of original complaint:

Party must receive sufficient notice so he is not prejudiced in maintaining defense. Constructive notice possible: This could be through a shared attorney, identity of interest (job, for example) (Singletary v. Penn. Department of Corrections) and Party knew or should have known that but for a mistake about the proper party, the action would have been brought against him/her

Unknown D (John Doe) is questionableThere may be cases where P doesnt know identity of P until discovery F. Sanctions: Rule 11 Policy:

Encourages attorneys to consider merit before filing pleadings, motions, etc. to limit frivolous claims that may be allowed into court because of liberal rules

1983 amendments required mandatory monetary sanctions upon attorneys, but this created stifling effect and some meritorious claims werent filed for fear of rule 11 litigation

1993 amendments: safe harbor provision was added, granting of attorney fees was severely limited

Rule 11 is applicable to every pleading, written motion (to dismiss, answer, complaint, etc), but not applicable to discovery (separate rule governs discovery)

Rule 11 motions can be filed against rule 11 motions ( there is a lot of litigation surrounding rule 11

There is a continuing obligation to comply with Rule 11 (if P finds in discovery that something isnt true, P can no longer insist on it)

11(b)

By signing pleading, attorney/party (absent attorney) is certifying nonrivolous argument that party has evidentiary support or is willing to tell D that it doesnt have the support yet

Lawyer certifying that all of this knowledge is after reasonable inquiry

Sanctions of Rule 11 should be what is necessary to deter party from conduct

If court decides that $ is necessary for deterrence, $ is usually paid to court to prevent incentive to file rule 11 to get $

11(c) Court may impose sanctions upon attorneys, law firms, or parties

11(c)(1)(a) safe harbor provision: Must serve opposing party with Rule 11 21 days before filing motion with court so party can correct violation

11(c)(1)(b)

On courts own initiative, court makes an attorney give reason for seemingly frivolous claim

Safe harbor provision does not apply G. Simple Joinder: Rules 18, 20, 21 Rule 18: Kind of joinder Ps can assert at outset of suit

Party can join unlimited number of claims against other party (piling on) Rule 20: Who can be joined as Ps and who can be joined as Ds 20(a): In order for a group of Ps/Ds to join together, the Ps/Ds must be asserting claim that comes out of the same transaction, occurrence/series of transactions or occurrences and one question of law or fact that is common to all the Ps/Ds seeking to join together

Transactional/Occurrence:

The same kind of event is not enough: events must be connected

If separate: alleging systematic pattern of misconduct

Question of law or fact:

Question of law might have to more specific than broad allegation such as negligence (Kedra v. City of Philadelphia) Policy: efficiency and judicial economy

Look to see if there is a lot of overlapping evidence in both cases and if issues of cases are the same Ex: A is an employee of a delivery service company, C. A gets in accident with B because of Bs negligence. A sues C for personal injuries. C sues B for damage to truck. To determine if simple joinder is allowed, must ask:

1. Did Bs negligence cause injury and damage to truck?

2. Was the accident the same occurrence out of which both claims arose?

Rule 20(b): Separate Trials

At time of trial, court can order separate trial to prevent embarrassment, delay, prejudice, or expense, though judicial economy can outweigh small prejudice Allows court to say that joinder is proper under 20(a) but there is still room to protect Ds

Rule 21: Motion challenging joinder (Severence) Misjoinder is not grounds for dismissalinstead, parties may be dropped or added by court or by motion

Any claim may be severed and proceeded with separately

Difference between separate trials and severance: lawsuit is same with separate trials (discover together)

Rule 42: Consolidation of claims and separate trials H. Counterclaims and Cross-Claims: Rule 13

Counterclaims are either Permissive or Compulsory:

Permissive counterclaim 13(b):

Not arising out of the same transaction/occurrence as original claim

Can be filed in a subsequent claimdoes not have to be filed in original lawsuit

Compulsory Counterclaim 13(a):

If it arises out of the same transaction or occurrence as original claim

Must be brought in original lawsuit and cannot be brought in a subsequent one

Test for determining if counterclaim is permissive or compulsory (Banque Indosuez) Issues of fact and law largely the same?

Would res judicata bar a subsequent suit?

Will substantially the same evidence support/refute both claims?

Is there a logical relationship between claim and counterclaim?

Exceptions: When Ds claim requires a party for just adjudication that cannot be made for personal jurisdiction reasons or claims by D that are rem or quasi in rem providing that D has no other counterclaim Cross-Claims Claims against co-parties (indemnification) Cross-claims are always permissive (dont lose if you dont bring it in original suit) 13(g): Can sue co-party if claim arises out of same transaction/occurrence as the original claim

13(h) Joinder of a party to assert cross-claim/counterclaim

Rules of 19 and 20 apply

Can serve same function as impleader, but counterclaim or cross-claim must already exist

I. Third-Party Practice: Rule 14 Impleader Rule 14 allows D to implead a person not already a party to the suit who is or may be liable to the third party P for all or part of the Ps claim against the third party D (aka derivative liability)

Original D becomes a third-party P impleading a third-party D In order for D to implead a new party, three conditions must be met:

1. Impleader can only be used in order to bring in someone not already a party (difference between 14 and 13(h) 2. D has to have a claim against the new party it seeks to implead (D has to have a theory of liability against 3rd party to implead her, though D can assert that its 3rd partys fault without impleading her, subpoenaing 3rd party to testify as a non-party)

3. For D to have a valid impleader against 3rd party, liability allegation must be for all or part of Ps claim against D.

If D has a valid claim against 3rd party regardless of outcome of P v. D, then it is not a valid impleader

Impleader proper even if Ds liability is not established (is or may be liable)

Courts balance benefits derived from impleader against potential prejudice to P and 3rd party D. Prejudice to P due to additional discovery may be outweighed by benefits of more efficient litigation gained by impleader.

delay is taken into account

Policy: to promote efficiency by eliminating necessity for D to bring separate action against 3rd party; enforces consistency (separate trials could result in different results) How Impleader works: If more than 10 days have passed after D has filed answer, D has to make motion to implead

Rule 8(a) pleading requirements apply to Rule 14

3rd party D should raise 12b defenses against 3rd party P by answer or motion

3rd party D may assert against P any defenses which the 3rd party P has asserting against P

3rd party D may, but does not have to, assert any claims arising out of same transaction or occurrence against P

Original P may assert a claim against 3rd party D if claims is out of the same transaction or occurrence as subject matter of original claim

Possible sources of derivative liability that would support use of 14(a) impleader: Contribution: Joint tortfeasors (there has to be a statute allowing contribution) Indemnification: When there is a certain kind of relationship between D and third party that creates this right (Ex. Employee commits torts that employer is liable for ( employer brings in employee; general contractor/sub-contractor)

Subrogation: One person assumes the legal rights of another.

When an insurance company pays out P and then, assuming Ps rights, sues 3rd party that caused injury and made insurance company liable to P

Impleader vs. Joiner under 13(h)

To use 13(h), there must exist a counterclaim or cross-claim. If a counterclaim or cross-claim is not being asserted, rule 14 must be used

Miscellaneous info about Rule 14:

Even if there has already been a settlement between P and D, D can seek to recover from 3rd party (Rule 3(a)) IV. Discovery

Function: To get facts out before trial

Policy behind expanded discovery:

Elimination of surprise/trial by ambush so cases are tried on their merits

Allows for both sides to access strength and weaknesses of their case

Narrows issues to be disputed at trial, reducing drain of resources on court

Allows for a higher probability of informed settlement instead of trial

Increases effectiveness of summary judgment

Preservation of testimony in cases where it becomes unavailable (through death, for example)

Balance to liberal pleading rules

Tension of fairness and adversary system:

Duty of attorney to be a zealous advocate of clientthis can conflict with morally responsible behavior

Discovery has been restrained in past two decades because of its reputation for high cost and abuse Informal Discovery Occurs before filing compliant

Refers to any form of extrajudicial research or inquiry that attempts to obtain facts relevant to case (internet, public records, etc)

Timing (30 days to respond)?? Rule 26: Provisions governing discovery; Duty of disclosure

Rule 26(b)(1): A party may ask for discovery for any information that: Is relevant to the claim or defense of any party

This is a broad allowance because it includes info that appears reasonably calculated to lead to the discovery of admissible evidence.

Is not unreasonably cumulative or burdensome

Court may limit frequency of discovery when information sought is unreasonably cumulative or duplicative or is obtainable from some other source that is more convenient. Is not privileged Most frequently invoked privilege is attorney-client

Parties will often fight about what constitutes privileged info For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.

This rule is an anti-fishing expedition attempt (using discovery to find other claims, though 11(b)(3) allows for claims likely to have evidentiary support (evidence that rules dont always work in harmony with each other) Rule 26(b)(2):

Limits to discovery that might otherwise be admissible under 26(b)(1) What is duplicative/cumulative?

Party might say that additional info is needed to persuade the jury

Rule 26(a)(1): Before discovery request, party must provide: Name, address, telephone numbers of individuals who are likely to have discoverable info that the disclosing party may use to support its claims or defenses

Copy of description of all documents, data compilations, and tangible things that are in possession, custody or control of party and that disclosing party may use to supports it claims or defenses

Computation of damages claimed by disclosing party with supporting materials

Copies of any insurance agreement under which insurance group may be liable to satisfy part of damages

This rule is tied to Rule 26(f) conferencing rule, which says parties must meet to see how discovery is going to proceed and how material is going to be revealed under 26(a)(1), and also tied to Rule 16 (timeline: 26(f).26(a)(1).16(b) Rule 26(a)(2)(c): Requires certain disclosures of expert testimonies not later than 90 days before trial date

Requires disclosures of identities of witnesses and documents to be used at trial at least 30 days before trial Rule 26(a)(3): Pretrial Disclosures

At least 30 days before trial date, parties must provide information about witnesses and evidence Rule 26(a)(5): Outlines formal techniques by which parties can obtain discovery Rule 26(e): There is a continuing duty to supplement discovery responses if party finds out that she provided info that was incomplete or incorrect Applies to pre-discovery disclosure, and disclosure regarding experts, interrogatories, request for production, admissions

Rule 26(g): Establishes certification process unique to discovery (like Rule 11)

Work Product Doctrine (Hickman v. Taylor) In Hickman, (4 men drowned when tugboat towing railroad car sank) issue was whether discovery may be used to inquire into materials collected by other partys counsel in course of preparing for litigation (Ps attorneys sought to use discovery to obtain tugboat attorneys statements from survivors and witnesses and interrogatories)

Policy for protecting work product of attorney:

Oral testimonies: issues of inaccuracy, untrustworthiness, protecting attorneys thought process, evaluation of evidence which could appear in transcription

Written statements: not privileged if witness no longer available. Idea that other party could obtain same info from witness. Attorney might be less likely to write stuff down if his thought process were discoverable, causing trial prep. to suffer

Must show these factors for trial prep. material not to be privileged (Rule 26(b)(3)): That requested material is material that is prepared in anticipation of litigation or trial.

That there is a substantial need for requested material

There is showing that material cannot be obtained through some easier means

When ordering discovery of such material, the court shall protect against disclosure of mental impressions, conclusions, opinions, or legal theories of attorney or other representative of a party

Rule applies to documents and tangible things (not complete adoption of doctrine in Hickman) 26(b)(5): Claims of privilege or protection of trial materials Party has to make claim of privilege directly

Challenging a discovery request: Motion for protective order 26(c): The court in the district in which the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense (see list). Objection to the discovery request under 26(b)(1) that it is cumulative etc. etc. and this done through 34(b) (if the request is for a written document) written response within 30 days of the request where you state your objections. Party seeking discovery can then file a 37(a)(1-3) motion to compel discovery. Requires conference so parties can try to figure it out amongst themselves before involving judge and satellite litigation Discovery Techniques: Depositions: Rules 27-32 Used to question potential nonparty and party witnesses under oath about their knowledge of underlying action despondent given opportunity to review transcript and make technical corrections

If despondent is a non-party, moving party usually has to subpoena him

Parties allowed to attend any deposition by other party

despondent must be given notice in writing of deposition

Objections: parties may object to questions during deposition, but despondent has to answer all questions unless objection was to form of question or an objection to question that would reveal privileged information. Answers to objected questions remain subject to objection

Anything recorded in deposition is available for use at trial (can be used if witness unavailable, to impeach witness testimony

There is a limit to number of depositions that may be taken until permission must be asked to court When depositions are not taken:

If attorney doesnt want opposing party to know of her theories

If she wants to wait to trial to confront witness

Positive aspects:

Attorneys can follow up on answers, take deposition in new direction

Can request parties to bring documents

Negative aspects:

Expense Written Interrogatories: Rule 33 Written questions submitted to party that must be answered in writing, under oath (limit to 25 until permission from court required) Positive aspects:

Useful for obtaining detailed and noncontroversial info (names, addresses, dates, etc)

Available for use at trial

Negative aspects:

Answers are almost always drafted by lawyer and are therefore crafted to contain as little info as possible Production of Documents and Things: Rule 34 Party can request other party to produce documents and things and may inspect and copy documents before returning them

Document and things: broad term meaning any written, recorded, or digitalized info, inspection of real or personal property Can be directed to a nonparty with a subpoena and a subpoena duchas tackem (subpoena to bring documents)

Rule 34(b): Requires request be made with reasonable particularity

Negative aspect:

Can be difficult to find balance between over and under inclusiveness Physical and Mental Examinations: Rule 35 May be requested when persons condition is in controversy and person to be examined is given proper notice

Court approval required and good cause showing (only discovery mechanism requiring court order) Request for Admissions: Rule 36 Party may serve on another party within scope of discovery

One party poses a question in form of a statement, which other party must admit or deny

Once admitted, fact must be taken as true throughout trial unless court permits withdrawal or amendment

Narrows issues at trial so it will be clear what issues are contested and what issues parties agree on

No limit on number of requests for admissions a party can make unless local rules say otherwise Experts: Parties can prepare and groom their experts (( criticism for biased opinions) Discovery Planning:

1. Learn the law: To figure out what facts need to be established in order to prove/rebut claim/defense

2. Review the factual information already at your disposal

Interview client, reviewing documents client has access to, public sources of info

3. Identify source of discoverable information

Nonparties that might have info that could bolster/undermine positions

Strategic considerations:

Early depositions of key witness could be useful in evaluating rest of discovery plan; could lead to settlement

4. Consider how best to obtain info you seek

identifying methods of discovery

5. Determine whether expert testimony is likely

If opposing party will be using expert testimony, plan on serving set of interrogatories on their expert

6. Review the cases discovery need periodically V. Judgment as a Matter of Law--Summary Judgment Timing: typically after discovery and before trial Proving no genuine issue of material fact

Judge is trying to predict what evidence will be at trial, based on pleadings, affidavits, discovery

Usually made by defendant, who must show lack of evidence as to one of the elements (easier to prove than that all of the elements are true when P is requesting summary judgment)

Summary judgment can still be granted even if there are a lot of disputed facts if there is a failure of evidence to one element (or affirmative defense should be taken as true) Particular summary judgment motion: decision made on specific issue and then trial on other issues

Spectrum of Summary Judgment Motions:

Matter of factWas there a policeman in the store? (summary judgment improper)

Mixed questions of law and fact: SJ may be proper

Whether driver used reasonable care is legal standard, but applying standard to driver is question for the jury

Pure matter of law: Does Constitution apply to discrimination against women? (Not a question for the jury( SJ could be appropriate)

Policy:

Jury control mechanism

Helps weed out meritless cases, since pleadings alone dont do this

Balance: If court is too reluctant to grant summary judgment, waste of efficiency and economy. If courts grant summary judgment too easily, the right to a jury trial can be impaired How prima facie case made for S.J:

If moving party bears burden of persuasion at trial:

moving party must support motion with credible evidence (using material in 56(c)) that would entitle party to directed verdict if case went to trial

if this burden of production met, burden shifts to nonmoving party, who must then demonstrate genuine issue for trial or submit affidavit requesting more time for discovery If nonmoving party has burden of persuasion at trial: Party moving for SJ may meet burden of production by: submitting affirmative evidence that counters element of nonmoving partys claim, or Demonstrate to court that nonmoving partys evidence is insufficient to establish essential element of claim: (if moving party seeks SJ on ground that nonmoving party has no evidence, moving party must affirmatively show absence of evidence on record (depositions of other partys witnesses, documents, etc), attacking all of nonmoving partys evidence) Rule 56: 56(c): Moving partys burden

outlines what moving party is supposed to do to be entitled to summary judgment: must show that pleadings, depositions, answers to interrogatories and admissions, together with affidavits show that there is no genuine issue as to any material fact and that moving party is entitled to judgment as a matter of law evidence looked at in light most favorable to nonmoving party, making reasonable inferences

moving party cannot simply say there is no issue (has to point to the evidence and show why there is no issue), though moving party can but does not have to bring forth its own evidence to contradict other party

If 56(c) not met, 56(e) does not apply

56(e): Nonmoving partys burden after motion for summary judgment has been made and supported under 56(c) Nonmoving party cannot rest on allegations and denials, but must show specific facts that there is a genuine issue for trial

Must show that a reasonable jury could find for them 56(f): request for time for more discovery on particular issue/element to survive summary judgment motion Adickes v. S.H. Kress and Co. (1970)lunch counter case Court said that D was not eligible for summary judgment because he didnt carry the burden of showing the absence of material issue of fact (must show that there was no policeman in store)

To foreclose possibility of policeman being in store, D couldve submitted affidavits by police, waitresses

If D had met its burden, P would have had to come forward with some affidavit, discovery material, evidence showing that it will be able to meet its burden of production at trial

No longer good law, as the case interpreted the 1963 amendment to mean that the moving partys burden was to show the absence of a genuine issue concerning a material fact

Celotex (1986) and the trilogy cases Reaffirms procedural importance of summary judgment to secure just, speedy, and inexpensive determination of every actioncourt more favorable to summary judgment

If moving party does not have burden of production at trial: it must show absence of evidence in one element (can simply point to lack of evidence, relying on depositions, affidavits, etc., and does not have to show evidence or prove affirmative defense to get summary judgment)

Dissent: Worries that court is deciding issues of fact and credibility (assessing witnesses), infringing on jury rights

Summary Judgment in a nutshell: Moving party has burden of demonstrating that there is no material issue of fact. If moving party makes the showing that is required, nonmoving party has to come forward with some special facts to show that there is some reason of material party. If nonmoving party cannot contest that, summary judgment granted

VI. Judgment as a Matter of LawDismissal, Directed Verdict, JNOV, New Trials When Jnov, SJ, Directed Verdict, etc. should be granted are reviewed de novo because court has not reviewed matters of fact; decided issues as a matter of law

Voluntary Dismissal: 41(a) Dismissal without prejudice: P can dismiss once and can file claim again

Adjudication on the merits: If P dismisses again, this will bar another action on the same claim

It is not an adjudication on the merits if it is a dismissal for jurisdiction or improper venue Involuntary Dismissal:

Such as failure to state a claim upon which relief can be granted

Typically adjudication on the merits (res judicata effect)

Directed Verdict/Judgment as a Matter of LawRule 50(a) Timing: Made at end of presentation of case, before case goes to jury

Same standard for summary judgment, except that judge looks at evidence instead of predicting what evidence will be

Means that no reasonable jury could find in favor of party against whom judgment is sought

Question to ask: Is there sufficient evidence for a reasonable jury to find in favor of the nonmoving party? If no, directed verdict granted.

Cannot be granted until non-moving party has had chance to be fully heard

Galloway v. United States: Insane soldier trying to get coverage under government insurance policy

Motion granted, but judge was deciding on a question of fact (was P permanently disabled in 1919?) Judgment Notwithstanding the Verdict J NOV)Rule 50 To comply with 7th amendment, court has let case go to jury after having heard a motion for directed verdict (50(a) motion had to have been made) Jury comes back for verdict for P and D says that there wasnt enough evidence for a reasonable jury to find in favor of the P

D asks for new trial and JNOV at same time because judge might be more likely to grant new trial

Motion for a New TrialRule 59

On ground that jury verdict is against the weight of the evidence (allows judge to weigh evidence herself) for any of the reasons for which trials have been granted at law in courts of United States May be granted on courts own initiative or through motion from parties Granted if: error by judge misconduct of jury (arises from evidence because juries cant talk about deliberations) On ground that jury verdict is against the weight of the evidence because judgment is clearly wrong (allows judge to weigh evidence herself, unlike with SJ/judgment as a matter of law motions) VII. Types of Verdicts

Special verdictRule 49(a): When series of interrogatories are issued to jury that jury must answer and return to judge, who makes decision based on the answers Allows judge to structure reasoning process of jury

General verdict: Find for P or D. If P, award damages

General verdict with special interrogatories49(b): Written interrogatories upon one or more issues of fact, decision of which is necessary to verdict

Concentrates jury attention, avoiding confusion, taking emotional element out of case Remittitur:

Damages are excessive so P must agree to decrease in damages or judge will grant new trial

Additur:

Constitutionally unavailable in federal court Damages are insufficient, so D must agree to adding damages or will be faced with new trial VIII. Appeals

Final Judgment Rule: In the federal system, only final judgments are appealed (no reason to appeal if something can be corrected at trial level)

Exceptions:

Collateral Order Doctrine: there is an order that is satellite litigation and appeal does not require delving into the merits of the case

Interlocutory Appeal: Primarily related to injunctions

Writ of mendamis: trial court has done something beyond its power

Standards of review: (Rule 52(a)) If issue on appeal is an issue of law, appellate court looks at it de novo (on its own)

If it was a bench trial and the court ruled on some fact finding, or if issue on appeal is related to how jury reached its fact, reviewed on clearly erroneous standard (was a factual finding clearly erroneous?)

Appellate court will remand for new fact finding

Discretionary matters, such as new trial granting, reviewed on abuse of discretion Only goes from state to Supreme Court when there is a question of federal law and final judgment has been rendered by the highest court of a state in which a decision could be had. IX. Personal Jurisdiction Addresses issue of whether the court has power to adjudicate over and bind a particular defendant (idea of state sovereignty)

Role of notice: must ask if the D has received the kind of notice so that it is fair to adjudicate this issue?

Full Faith and Credit Clause (Article 4, section 1): Full faith and credit shall be given in each state to public acts, records, judicial proceedings in every other state

Congress legislates how this full faith and credit is given

28 U.S.C.full faith and credit statute:

Such acts, records and judicial proceedings shall have full faith and credit in every court of the United States as they have in the state in which they were adjudicated. Only applies to valid judgments.

Extends full faith and credit to federal courts

Categories of jurisdiction:

In personam: Power over person P is suing D and basis of lawsuit is some transaction between them and P is trying to hold D personally liable for injury In rem: Power over property within states borders an action about and against property, in the sense that property is the defendant, to determine individuals interest in property Used to resolve issue of property (who owns title)

Binds everyone whether or not they had notice, participated in the proceeding, or were in the state a state court always has personal jurisdiction over property in the state

Quasi in rem: Based on presence of Ds property (personal or real) within forum state

claims are unrelated to the property that provides basis for jurisdiction in forum state

allows court to enter a judgment for an amount of money not exceeding value of propertyhave to go to another jurisdiction to enforce rest of the amount owed above the property value

Property is attached to establish power over D Status:

Status of party in state has power over people who dont live there (ex: wife in Fl wants to divorce husband in AZ)

Challenging Personal Jurisdiction:

Collateral Attack: Default judgment is entered by not showing and then D can challenge validity of judgment

Special appearance: D can make a special appearance to challenge jurisdiction without consenting to jurisdiction

12(b)(2): allows for a motion challenging personal jurisdiction (idea of special appearance)

12(g and h): allows certain motions and defenses to be consolidated so that motion to be dismissed can be filed with motion to contest personal jurisdiction and that wouldnt constitute an appearance and, therefore, waiver of personal jurisdiction

If 12(b)(6) raised without 12(b)(2), personal jurisdiction contestation is waived

Miscellaneous info about personal jurisdiction:

Unlike subject matter jurisdiction, personal jurisdiction can be waived

States power in regards to jurisdiction is limited to person or property within state (sheriff in MI cannot go to OH to serve D)

P can always go where D resides to file suit, but for strategic reasons, P often wants to file in home state (early, better settlement in regards to inconvenience to D, home court advantage)

Under the 14th amendment, a corporation is a person

Issue of whether filing in one state where there is no PJ bars filing the suit in another state:

Depends on nature of the judgment: 12(b)(6) motion or summary judgment motion could be final judgment on the merits which could lead to a bar from filing in another state unless 12(b)(6) was dismissed with leave to replead in proper court

1. Development of Personal Jurisdiction

Pennoyer v. Neff (U.S. 1877)

Facts: When Neff, a nonresident of OR never showed up for court (he was never served), default judgment was entered against him and his land was auctioned off, sold to Pennoyer.

Holding:

To establish quasi in-rem jurisdiction, Ds property in the state must be attached merely having the property in the state is insufficient. Attachment establishes the necessary physical control for personal jurisdiction. Public notice combined with such attachment is sufficient. attachment is a constructive form of notice (idea that property owner has responsibility to know what is going on with her property)

Property in jurisdiction is valid basis for asserting jurisdiction if court has asserted power over person or property (through attachment)

Instead of just saying that there was no quasi in rem because there was no attachment, the court invoked the 14th amendment, making personal jurisdiction a due process issue. Harris v. Balk (U.S. 1905)\

Courts trying to use Pennoyer framework creatively to fit case where conditions have altered due to interstate commerce

Md. court held that debt was personal property (quasi in rem jurisdiction) and debt follows debtor into state where debtor goes

Courts get jurisdiction over A if they personally serve B within the state and B owes a debt to A Supported by idea that A could sue B in that state.

Hess v. Pawloski (U.S. 1927) Transactional case that is a precursor to International Show Long arm statute says motorist driving in state impliedly appoints RMV as their agent to receive process if they are involved in an accident in another state

Policy: allows residents to get relief and keeps highways safe

follows Pennoyer which says that states are allowed to require people to appoint agents for service with process within state

implied consent statutes are now replaced with long arm statutes because causing an accident now satisfies minimum contact Questions to ask in every personal jurisdiction case (arose because jurisdiction became a constitutional issue):

Is there a statute authorizing jurisdiction? (long arm statutes)

Have the terms of the statute been met?

Is the statute constitutional? (does it conform with due process?)

2. Modern Personal Jurisdiction With more interstate commerce, the above rigid framework was stretched to accommodate states seeking to provide local forum for citizens to litigate claims against nonresident persons and corporations.

In 1945, the Supreme Court discarded structure of implied consent and presence in favor of theory premised on actual connections.

International Shoe Co. v. State of Washington (U.S. 1945)

WA statute authorized jurisdiction over nonresident employee for failure to compensate unemployment fund

Court discarded notion of actual physical presence of corporations and created new test:

Standard for determining if there is PJ: Are there sufficient minimum contacts between out of state D and forum state so that maintaining law suit in forum state wont offend traditional notions of fair play and substantial justice?

Offending fair play and substantial justice: look at burden on D to come to and defend to foreign state

Contacts: Nature and quality of contacts matters (continuous, systematic, substantial) Policy behind test:

Corporations are protected by laws of state (could sue in forum states court) and receive financial benefit from activities in state

If claim arises out of corporations conduct within the state, requiring corporation to respond does not offend notions of fair play and substantial justice

Notice can be giving notice to employee and then mailing notice to headquarters Dissent:

Minimum contact standard to flexible and can be manipulated (criticizes terms fair play, reasonable)

Standard could deprive right of states citizens to sue corporation that does business in state

Levels of jurisdiction:

Level of Activity:Effects of out of state conduct felt within the forumSingle act within forum stateMid-range of activities within forum stateContinuous, systematic, substantial activities within forum

Relation of Claim to Activity:Only related claimsOnly related claimsOnly related claimsGeneral Jurisdiction: all claims, related or not

General jurisdiction: D can be sued for any sort of claim in a particular forum

General jurisdiction can arise if conduct is continuous and systematic Grounds for general jurisdiction:

Domicile or citizenship

Incorporation

Service or process in forum state

appearance in court

consent

Specific Jurisdiction: (Post International Shoe) Jurisdiction only when claim arises out of conduct that is the basis for the claim

Extended to conduct in another state that has effects in the forum state

Single act within forum: (Extreme min. contact where state has specific jurisdiction)

Mcgee: There was enough contact for lawsuit to be maintained without offending due process where the transaction was one insurance policy of a Texas company sold to someone in California and this one policy was only contact with CA

Long arm statutes:

After International Shoe, states began enacting statutes authorizing jurisdiction encompassing minimum contacts idea.

To determine whether court may assert jurisdiction over nonresident based on long-arm statute, ask:

Does the statute allow jurisdiction to be exercised in the particular case?

If so, does it nonetheless reach beyond the constitutional constraints of International Shoes minimum contacts test?

Some states (such as CA) have said that minimum contacts does not apply, but that court may assert jurisdiction on any basis not inconsistent with constitution/due process of state or U.S. Rule 4(k): Bounds of federal power with respect to jurisdictionrelevant long arm provision 5th amendment governs in federal court (14th in state court) 4(k)(1)(a): look to state law/statute to see if there is proper jurisdiction (reach of fed. court in certain district the same as reach of state court in that district) 4(k)(1)(b): 100 mile bulge provision authorizing jurisdiction over an impleaded party not otherwise within the district courts reach facilitates use of impleader, especially in metropolitan areas that span more than one state if federal bulge rule applies, minimum contacts rule does not apply 4(k)(1)(c): provides nationwide service in federal impleader actions to facilitate single litigation ?? 4(k)(2): narrow provision that extends federal power to its outermost constitutional limits in federal claims cases When noncitizen of US does not have minimum contact with any state so that a states long arm statute would create personal jurisdiction over nonresident Three requirements for jurisdiction here: Plaintiffs claim must arise under federal law Defendant must be beyond jurisdictional reach of any state court.

The exercise of jurisdiction must not violate the defendants rights under the constitution (there are sufficient aggregate contracts with the US as a whole to satisfy the Fifth Amendment Due Process Clause).3. Minimum Contacts Analysis in Operation Hanson v. Denkla: Florida had no jurisdiction over a DE trust co. because beneficiary moved to FL and the company never solicited any business in FL.

Personal availment: Test to see when contact is sufficient to give rise to PJ:

Has the D personally availed itself of the benefit and privileges of doing business in the forum state, or has contact come unilaterally from P?

D has to purposefully direct its conduct at forum state, thus invoking protection of states lawno PJ where contact is unilaterally from P

Contacts that give rise to PJ must be a result of personal availment)

When there is purposeful availment to benefits and privileges of state, this gives rise to foreseeability of being sued in state (this principle not stated in this case)

Worldwide Volkswagen v. Woodsen (U.S. 1980) Harris has been overturned by this point

Residents of NY buy a car from Seaway VW in NY, distributor is Worldwide VW from NY and get in an accident in Oklahoma.

Looks at personal availment vs. unilateral activity

Foreseeability test: Minimum contacts with forum state must be of such a kind that D can anticipate being sued in that state (circular logic) In response to argument that if a company could foresee its product ending up in a state, that state should have personal jurisdiction Stream of Commerce Theory:

Putting product into the stream of commerce under circumstance might be adequate to establish jurisdiction Policy: Company has benefited from putting product into national network Unilateral activity: When product ends up in another state through unilateral action by P (driving car into state) there is no PJ, though there may be PJ when a company indirectly sells its product into a different state (Gray v. American Radiator & Standard Sanitary Corp) Fairness and substantial justice: Determined by balancing factors: The Ps interest in obtaining convenient and effective relief The Ds burden The interstate judicial systems interest in obtaining the most efficient resolution of controversies The share interest of the several states in furthering fundamental substantive social policies Dissent: Effects of out of state activities in a forum state could give court jurisdiction over the actor Inherently mobile purpose of automobile should be considered Calder v. Jones (U.S. 1984)

Looks at personal availment vs. unilateral activity in libel suit

Court held there was jurisdiction in CA over Florida writer and editor, even though neither went there to write article, because their intentional conduct in Florida was calculated to cause injury to respondents in CA where D (FL) wrote an article about P, who lived in CA, though D did not go to CA to write article

Not enough that P lives in a state and is injured in that state:

Jurisdiction because of high circulation in CA

Concerned activities in CA

Ps job and livelihood was in CA

Calder v. Jones effects test: Intentional conduct in one state where D knows is will have effects in another state (intentionally directed acts needed)

Alabama internet libel case: No jurisdiction in AL because article had nothing to do with AL and was, therefore, not intentionally directed at AL, but rather at P.

Asahi Metal Industry Co. v. Superior Court of California (U.S. 1987) Stream of Commerce theory in practice Issue: Whether foreign Ds awareness that the products in manufactured, sold, and delivered outside the U.S. would reach forum state in stream of commerce constitute minimum contacts so that personal jurisdiction over D does not offend traditional notions of fair play and substantial justice. Holding: Majority held that it would not be fair play and substantial justice to have jurisdiction over Asahi even if there were minimum contacts (reasonableness) Once purposeful contacts are found, court still needs to look at factors relating to fairness and reasonableness before coming to a conclusion about PJ (see Worldwide VW) Need to ask if there is purposeful availment on part of Asahi to Californiacourt does not come to a majority decision about purposeful availment: OConnor: Stream of commerce plus additional conduct theory: Purposefully putting something into stream of commerce with expectation that it is going to end up in market place is not enough to establish personal jurisdiction. Rather, some other personal conduct is needed that is directed at forum state (Advertising product in forum state, designing product for market in forum state, giving regular advice to people in forum state) to show that D intended to serve market Brennan writes for 4 vote block saying there was puroposeful availment: Purposefully putting product in stream of commerce with expectation that you will derive economic benefit from it ending up in forum state is enough for purposeful availment (Worldwide VW) Need to look at both approaches today, since court hasnt decided how it would decide a stream of commerce case Analyzing stream of commerce case post Asahi: *Ohio valve manufacturer sells to PA tire manufacturer. Tire explodes in CA. Is there personal jurisdiction over the Ohio company in CA? Has there been purposeful contact between D and forum state? (min. contacts) OConnor would say that additional factors needed

Brennan would say that putting product in stream of commerce is enough for personal availment

If there has been, is it reasonable to exercise PJ over D? (reasonablenessuse Worldwide VW test) Note how reasonableness and minimum contacts are separated now (used to be minimum contacts so that exercising jurisdiction was reasonable)

Burger King v. Rudzewicz (U.S. 1985) Good overview of PJ (emphasizes idea that once minimum contacts established through personal availment, factors could show that fair play and substantial justice (reasonableness) could defeat jurisdiction Holding: The existence of a contract is not enough to establish minimum contacts for personal jurisdiction. Rather, other factors must be present such as prior negotiations, future consequences, terms of contract, parties course of dealing If there are minimum contacts, it is rare that the factors dont show reasonableness--When determining reasonableness, D has to meet heavy burden proving why PJ is not fair or reasonable Do not need to look at stream of commerce theory when product sent directly to forum state Choice of law provisions: Provisions in contract that can determine which states law is applied These alone dont establish PJ, but adds to foreseeability of jurisdiction 4. Jurisdiction Based On the Presence of Defendants Property Shaffer v. Heitner (U.S., 1977) Marks the end of Pennoyer Pennoyer restricted in personam jurisdiction to residents of the forum state while it said that presence of Ds property in forum state was enough for quasi in rem Narrow holding: Seizure of only intangible property as a means of gaining jurisdiction is unconstitutional. One must have minimum contacts. Such statutes are just ways to compel people to submit to jurisdiction get rid of the fiction that power over property is different from power over personinterest of person in things Broad holding: All exercise of jurisdiction must comply with International Shoe fairness and substantial justice minimum contacts analysis International Shoe made it easier to obtain in personam jurisdiction because PJ was no longer based solely on state sovereignty, but on the relationship among D, forum, and litigation Presence of property in forum state not alone enough to assert PJ For quasi in rem, where the plaintiff has been injured on the property wouldnt be a difficult case

Policy: If action of in personam jurisdiction would violate Constitution, indirect (quasi in rem) assertion of jurisdiction would too derivative action: allows shareholders to assert rights of corporation Dissent: leaves open possibility of quasi in rem jurisdiction where real property is seized uses minimum contacts analysis 5. Jurisdiction Based Solely on Personal Service Within the Forum State

Burnham v. Superior Court of California, U.S. 1990

Burnhams (NJ) divorce and Mrs. Burnham moves to CA

CA needs in personam jurisdiction over Mr. Burnham because case involves custody and property issues

Specific Issue: Whether personal service of Mr. Burnham in CA while he was in CA for matters unrelated to lawsuit complies with Due Process?

Court says that physical presence in state ( personal jurisdiction over that person, but there is no broad holding that creates general rule of law on this issue, because all judges agree on outcome but do not agree with how to evaluate jurisdiction where there is physical presence in state

Scalia: International Shoe standard of minimum contacts is analogous to physical presence so when there is actual physical presence, minimum contacts need not be evaluated

Tradition shows that physical presence is enough for personal jurisdiction (physical presence in state establishes fair play and substantial justice)

Minimum contacts applies when D is not in state

Good law is predictable, non discretionary (deciding fairness is subjective) Brennan: Minimum contacts should be applied to all personal jurisdiction cases Can use ideas of personal availment, foreseeability, etc. to determine, on independent basis fairness of in state service rule

All rules of jurisdiction, even ancient ones, should satisfy contemporary notions of due process

Ultimately, in most cases where D is served in forum state and is intentionally present in forum state, the state will have jurisdiction There is not PJ over a corporation simply because a corporate agent as in a stateneed to see if there is general jurisdiction or if a case can be made based on minimum contacts analysis Wenche Seimer v. Lear Jet Fifth circuit held that Corporations have never fitted comfortably in a jurisdictional regime based primarily upon de facto power over the defendants person. \ Judicial power over corporations must be based on either one of two constitutionally permissible bases, specific jurisdiction over claims relating to instate activities, or such continuous and systematic conduct in the forum state so as to justify general jurisdiction. Tag Jurisdiction Jurisdiction has been upheld where D was served while on plane over forum state

Under Brennans analysis, this case would probably not come out the same because there arent sufficient minimum contacts, person hasnt availed self to benefits of state, no intent to go to state that plane is flying over

Scalia: Traditional notions of presence isnt flying over state 6. General Jurisdiction When forum activities of a corporate defendant are sufficiently continuous, systematic, and substantial, it may be sued under unrelated claims in forum state Domicile: Citizens of state may be sued there on any claim, even claims rising from events in other states ( ensures that there will always be one forum in which D may be sued General jurisdiction exists over a corporate D that is incorporated in forum state or whose headquarters or principle place of business is located there Helicopteros Nacionales de Colombia v. Hall, U.S. 1984 Wrongful death suit for airplane crash that occurred in Colombia Issue: Whether the exercise of jurisdiction can take place even though the claim did not arise out of or relate to Helicols activities in the state (Is there general jurisdiction over Helicol?) Contacts with state must be continuous, systematic, and substantial (from International Shoe) Factors to assert general jurisdiction over corporation: Permanent employees, offices, significant revenue, headquarters/principle place of business, incorporation Activity that looks like activity of a local resident Majority says that there is no general jurisdiction even though contract negotiations were done in Texas, the helicopter was bought in Texas, the pilot was trained in Texas Standing alone, purchases and related trips are not a sufficient basis for states assertion of jurisdiction Court does not decide on specific jurisdiction (reluctant to allow U.S. courts to assert jurisdiction over foreign companies) Perkins: Opposite end of the spectrum from Helicopteros where there was PJ in Ohio over Philippines corporation based on the fact that the present had residence there and did business there Specific Jurisdiction v. General Jursidiction: SJ: Premised on contacts that D has in forum state (relationship between activity of D in forum state and the forum)

GJ: Out of state body has such continuous, substantial, and systematic contact in forum state that there is jurisdiction over D (Question of when Ds activity in forum state is sufficient so that jurisdiction over her would be fair)7. Consent

D can voluntarily appear in court and therefore submit to jurisdiction Forum-selection cause: consent to jurisdiction in contract before dispute even occurs Carnival Cruise Lines v. Shute U.S. 1991 Courts will enforce forum selection causes in cruise tickets when they are fundamentally fair (not used in bad faith to discourage P from filing claim, not obtained by fraud or overreaching) P must have notice of clause and ability to repudiate it without impunity Provides element of certainty and efficiency, with less litigation about jurisdiction Prevents cost-shifting to consumer (higher prices if there is jurisdiction in many states) Limits number of locales where corporation can be sued Generally upholds concepts of PJ, which is to protect D from being sued under unfair and unreasonably burdensome conditions 8. Personal Jurisdiction in Internet Cases Supreme Court has not spoken to issue of how PJ is affected by technological advances and the internet ALS Scan, Inc. v. Digital Service Consultants, Inc., 4th Circuit, 2002 Court using test of series of factors first developed in Zippo case (a lot have followed this Zippo analysis) Court of Appeals uses sliding scale to determine PJ based on internet cases: PJ established: Contact via internet website, intent to do business (i.e. purposeful contact) PJ is questionable: Some exchange of activity/exchange of info with host but nature of activity needs to be examined to determine whether there is PJ No PJ: Passive website information Court is adapting some notions of purposeful availment, but is not fully implementing traditional notions of reasonableness and fair play PJ in internet cases established when: 1) Must direct electronic activity into state 2) with the manifested intent of engaging in business or other interactions with the state and 3) the activity creates in a person within the state, a potential cause of action cognizable in the states courts How to assess internet PJ cases:

Look first to state long-arm statute If long-arm has been established, look to Constitutional argument and ask if D has engaged in purposeful contact with state so that PJ in state would not offend traditional notions of fair play and substantial justice. 9. Notice Under Pennoyer notice occurred simultaneously with act that gave rise to jurisdiction, either personal service or attachment of property within state. After Intl. Shoe we needed system of notice that complied with minimum contact analysis. Mulane v. Central Hanover Bank & Trust, U.S. 1950 Question of notice to members of a common trust where service was given in local newspapers in NY while many people in the trust were non-residents. Company had also sent copies of NY Banking regulations to members of trust Standard of notice: Must be reasonably calculated, to apprise the D of the lawsuit and provide them a chance for response. Notice must be of such a nature as to reasonably convey the required information and must afford a reasonable time for those interested in making their appearance In regards to known persons, notice by publication is not sufficient May be sufficient if it is done with some other act (ex. seizure of property, abandonment), publication may be sufficient notice Publication may be adequate where persons are unknown Status of law today: Notice by U.S. mail is Constitutional minimum Ds whose addresses can be ascertained by reasonably diligent effort Rule 4 and Notice 4(c)(2) says that anyone over age of 18 may deliver service

4(d) governs service on corporations

4(d) says that P first sends a waiver form asking D to waive actual service of process. The waiver includes notice of the lawsuit and copy of the complaint. 4(d)(5)if D denies this waiver, D will have to pay for Ps costs unless a showing of good cause for failing to comply wit request for waiver made. Examples of good cause language differences etc. If service is waived, D gets 60 days to file an answer, if not waived, 20 days upon service. If statute of limitations is running close, and P is in a state where SOL continues on until answer, P may not have time for waiver procedure, and P may have to personally serve under rule 4(e), 4(h) If D refuses to waive, procedure is 4(e)(1) which brings P back to state law. One can object to personal service of process with 12(b)(4), but cannot waive objection to venue 12(b)(3) and personal jurisdiction 12(b)(2).

X. Venue State venue laws: Identify counties within state where action may be brought

Federal venue rules: Locate a case within particular federal judicial districts

If Subject Matter Jurisdiction is based on diversity of citizenship or federal question, venue is proper in a judicial district where any defendant resides (if all reside in same state) or where substantial part of the events giving rise to claim occurred

Corporate defendant resides in any district where it is subject to personal jurisdiction

If defendants from different state or events of claim rose in foreign country, diversity action may be filed in a district where any defendant is subject to PJ and a federal question case in a district where any defendant may be found (less than PJ)

Many states have more then one federal judicial district; venue is not about power as is personal jurisdiction but about convenience. Venue, unlike PJ, is not a constitutional requirement for a valid judgment

28 USC 1391 (General venue statute)sets up different rules depending on whether SMJ is based on diversity or federal question 1391(a): Diversity of citizenship 1) Party resides: Venue is proper in judicial district where any D resides if both Ds reside in same state (corporate Ds reside in any district where it is subject to PJ)

2) Claim: Judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is subject of the action is situated or

3) Diversity action fall back provision: Where any D is subject to PJ at any time action is commenced if no district in which action may be brought otherwise

1391(b): When jurisdiction is not solely on diversity of citizenship 1) and 2) the same as above

3) Fall back provision: Where any D may be found (less that PJforeign Ds)

1391(c): Where a corporation resides Hypos: *P is suing D and D1. Lawsuit arises out of a car accident that occurs in Manhatten. P is a citizen of N.Y. D is a citizen of Harrisburg PA and D1 is from Pittsburgh. Jurisdiction in federal court for a state law negligence claim for a state law diversity of citizenship. Federal courts that have venue over this action: Either middle or western PA. Look at section 8: Substantial amount of even of lawsuit took place in NYC. PJ is appropriate in PA and in southern district of NY because of minimum contacts SMJ is appropriate because of complete diversity If P filed in Buffalo, Ds could file 12(b)(3) for lack of venue because events didnt arise there. PJ is available in state of NY. Venue could be waived. *Car accident in N.Y. D lives in MA and D2 lives in NJ. P wants to file a federal action. Southern district of N.Y. is only proper venue (where substantial portion of events occurred) *Car accident happens in Paris. P wants to sue Ds in federal court. 1404(a) Change of Venue Allows for change of venue within federal system where action may have been brought originally (For convenience of parties and witnesses, in interest of justice) Does it have to be where it could be originally brought?

1406(a) Cure or Waiver of Defects If action is brought where venue is improper, the D can seek to have action dismissed (without prejudice) or court can cure defect by transferring case to appropriate venue in which it could have been brought, in interest of justice

Objection to venue must be raised in timely manner or it is waived

Cannot be raised as a collateral attack (not required for valid judgment)

Forum non conviens: Common law doctrine where court is being asked to dismiss an action because there is a more convenient forum where this action should go forward.

Gives the court the power to dismiss the action to be filed in a different forumdismissal is conditional on the parties allowing the case to go forward in the new venue

Different from 1404 or 1406 because it is premised on the idea that we are operating in the federal systemfederal system cannot transfer a case to Scotland. 1404 vs. forum non conviens: 1404 applies to the federal court system, Puerto Rico and Guam vs. FNC applies to state courts and to deferral system when possible venue is foreign or at state level

1404 change should not result in change in applicable law. The statute was designed as housekeeping measure, allowing easy change of venue within a unified federal system

Other states or foreign courts do not have to accept case, but the present court will dismiss the case on the condition that the D waives the statute of limitation objections and PJ objections.

Some states have incorporated FNC into long arm statute or other statute Piper Aircraft v. Reyno, U.S. 1981

Scottish air plane crash with pilots and Scottish victims, some American parts--action originally brought in California because of strict liability, eventually transferred to US District Court in Pennsylvania. Petitioners moved to dismiss on grounds of forum non conveniens after noting alternative forum in Scotland. Supreme Court ruled that although the above is the case with 1404(a), it is not appropriate to weigh the factor of change of law, unless there is no remedy at all in another jurisdiction, because of concerns with forum shopping, but should examine within a balancing test for forum non conveniens. Trial court in charge of deciding proper venue, weighing private and public interests

Weighing private factors (relevant to litigants):

Where is it easiest to gather witnesses?

Where would procedures be less expensive and expeditious?

Weighing public factors (relevant to courts):

Is this court congested with lots of cases?

Does this case have some connections to the forum?

What kind of law is going to govern in this case?

Ordinarily presumption that plaintiffs choice is convenient, however, this presumption applies with less force when plaintiffs are foreign because assumption is that Ps choice of venue is convenient for P (not case if foreign P)

XI. Subject Matter Jurisdiction

Subject Matter Jurisdiction, Personal Jurisdiction, and Notice are three requirements for a valid and enforceable judgment

SMJ deals with authority of a court to hear a particular case

Court can raise question of SMJ on its own, even if its not contested, unlike PJ Constitution defines SMJ in Article III:

Federal question jurisdiction and diversity jurisdiction

Gives Congress the power to establish inferior federal courts and designate the jurisdiction of the court within the authority of the Constitution

Need a jurisdictional statute for federal courts to have jurisdiction (Article III allows federal court to hear cases, but need statute whereby Congress has given federal courts this power)

Congress has established these statutes relevant to jurisdiction

1331: Federal question and the well-pleaded complaint rule

1332: Diversity jurisdiction; complete diversity and the amount in controversy These statutes essentially limit power of federal courts to hear cases Diversity and federal question cases can generally be heard in either federal or state court except when exclusive jurisdiction given to federal court (bankruptcy, patent and copyright, etc.)

Non-diversity cases and cases not dealing with federal law can only be heard in state court

Considerations when deciding if decision is filed in state or federal court:

How favorable the state or federal court will view the client

Issues that federal court might have more expertise with

Timing: one court might be backlogged

Federal Question Jurisdiction 28 USC Section 1331 governs Federal Question Jurisdiction 1331 provides for federal jurisdiction over all civil action arising under Constitution, laws, or treaties of U.S. Well-pleaded complaint rule governs interpretation of 1331 Does P have to establish some federal issue in order to win her case?

In establishing her COA, does P raise a federal question? Louisville and Nashville Railroad Company v. Mottley (U.S. 1908) Deals with question of whether there can be SMJ based on federal question when P states in claim that Ds defense will raise a federal question

Court says that issue of federal law has to be raised as part of Ps claim, excluding anticipated defenses

Implication is that some cases will require resolution of federal issue that is raised as defenses that there is no federal jurisdiction for

How to determine if case arises out of federal question:

Must arise out of laws, treaties, or Constitution of the United State

Federal question essentially means that federal law creates cause of action (P is raising claim created by federal lawusually a statute)

Might be a federal question even though federal law doesnt create cause of action, but normally federal statute/law creates cause of action that gives rise to federal jurisdiction

Counterclaims cannot give rise to federal jurisdiction if there was no federal jurisdiction in original claim

Diversity Jurisdiction 28 USC Section 1332 governs Diversity Jurisdiction

Every P must be a citizen of a different state than every D (diversity across v. not on one side or the other)

Section d(2)(a): Class action suits Diversity must exist at all times the complaint is taking filed. (Though there is now a class action fairness act which allows a class action to be held on diversity when any 2 parties are diverse)

Defining Citizenship:

Defines as domicile: the true, fixed and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom

Corporations: citizens of state of incorporation and primary place of business (i.e. can be citizens of more than one state, unlike persons)

Determined by nerve center test (where executive and administrative functions are performed) and place of operations test (one state where corporate activity is significantly greater than in the other states

Diversity must exist at time complaint is filed and subsequent changes in citizenship have no bearing on diversity

Amount in Controversy:

Currently $75,000 for diversity cases to reach federal court

Determined by amount claimed by P in good faithcan be dismissed on this grounds only when appears to a legal certainty that the claim is for less than minimum limit

federal jurisdiction not lost if judgment is actually for less, though court costs can be imposed on P who recovers less

Policy: To make sure case is financially significant enough to be in federal court. Idea that once one claim is financially significant enough, why not add others?

Exxon Mobil Corp. v. Allapatah Services (U.S. 2005)

Prior to Exxon, ever P had to independently satisfy the amount in controversy requirement with regard to a specific D

Court: Where other elements of jurisdiction are present and at least one named P in the action satisfies the amount in controversy requirement, 1367 authorizes supplemental jurisdiction over the claims of other Ps in the same Article III case or controversy, even if those claims are for less than the jurisdiction amount specified in the statute setting for the requirements for diversity jurisdiction.

Dissent: If theres jurisdiction over a civil action, civil action has to be seen as complaint as a whole in the diversity context. If this is do